Supreme Court of India
THANGASAMYversusTHE STATE OF TAMIL NADU
- Citation
- 2019 INSC 234
- Decided
- 20 February 2019
- Disposal
- Dismissed
- Bench
- ABHAY MANOHAR SAPRE
Holding
The Court held that the appellant’s identity as the driver was conclusively proved, his rash and negligent driving caused the deaths and injuries, and thus the conviction and sentence under sections 279, 337 and 304A stand.
Summary
The appellant, a government bus driver, was accused of driving negligently on 24 February 2001, causing a collision that killed four persons and injured three. The trial court, appellate court, and High Court convicted him under IPC sections 279, 337 (three counts) and 304A (four counts) based on consistent eyewitness testimony identifying him as the driver. The appellant challenged the conviction, arguing lack of identification and that the opposite vehicle’s negligence caused the accident, and also sought reduction of his sentence. The Supreme Court examined the evidence, found the identification of the appellant as driver to be firmly established, and rejected the claim that the other vehicle was responsible. It further held that the sentence, though on the lower side, was appropriate given the gravity of the offence and therefore dismissed the appeal, ordering the appellant to surrender and serve the remaining term.
Issues considered
- The prosecution proved the appellant was the driver of the bus involved in the accident.
- Whether the conviction under IPC sections 279, 337 and 304A is sustainable on the evidence.
- Whether the sentence imposed should be reduced or modified.
Legislation cited
- Indian Penal Code, 1860s. 279, s. 304A, s. 337
Subjects
rash drivingnegligent drivingIPC 304Asentencingroad safetycriminal liabilityidentification of driver
Judgment
600 [2019]
SUPREME COURT 4 S.C.R. 600
REPORTS [2019] 4 S.C.R.
A THANGASAMY
v.
THE STATE OF TAMIL NADU
(Criminal Appeal No. 698 of 2010)
B FEBRUARY 20, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Penal Code, 1860:
C ss. 304A, 337 and 279 – Negligent and rash driving –
Resulting in death of four and injury to three persons – Trial Court
convicted the accused u/ss. 279, 337 (3 counts) and 304A (4 counts)
and sentenced him to four months imprisonment for offence
u/s. 304A imposed fine of Rs.200/- for offence u/s. 279 and of
Rs.100/- for the offence u/s. 337 – Appellate Court as well as
D
Revision Court upheld the conviction and sentence – On appeal,
held: The courts below rightly concluded that the accident occurred
due to rash and negligent driving – No case is made out for
reducing the punishment, as Trial Court has already been
considerate in awarding the punishment.
E Dismissing the appeal, the Court
HELD: 1.1 The suggestion that the accident in question
occurred for the fault of the on-coming vehicle from the opposite
direction has been rejected with reference to the evidence on
record wherein the witness, including the injured persons,
F uniformly stated that the accident occurred for rash and
negligent driving of the offending vehicle by the appellant. So far
the question of identity of the appellant as driver of the offending
bus is concerned, the trial court, the appellate court and then the
High Court have found the fact duly proved with reference to the
G overwhelming evidence on record, including the testimony of
PW1 to PW5. [Paras 11 and 12] [605-E-F; 606-B]
1.2 There is no infirmity in the appreciation of evidence by
the sub-ordinate courts and by the High Court, who have
concurrently reached to the definite conclusion that the accident
H
600
THANGASAMY v. STATE OF TAMIL NADU 601
occurred for rash and negligent driving of the vehicle by the A
appellant that resulted in the death of four persons apart from
causing injuries to three. The devastation in terms of casualties
and injuries, as brought about by the appellant, was bound to
result in his conviction for the offences under Sections 304-A
IPC (four counts) and 337 IPC (three counts). [Para 13]
B
[606-C-D]
2. No case for reducing the punishment awarded to the
appellant is made out. For rash and negligent driving by the
appellant, as many as four persons died and three other sustained
injuries. Yet, the trial court had been considerate in awarding the
sentence only of four months’ imprisonment for each count of C
the offence under Section 304-A IPC and only of fine of Rs. 100
for each count of the offence under Section 337 IPC and
Rs. 200/- for the offence under Section 279 IPC. The punishment
awarded in this matter had been rather on the lower side.
[Para 17] [609-C-D] D
Alister Anthony Pareira v. State of Maharashtra
(2012) 2 SCC 648 : [2012] 1 SCR 145; State of M.P. v.
Ghansyam Singh (2003) 8 SCC 13 : [2003] 3 Suppl.
SCR 618; Dalbir Singh v. State of Haryana (2000) 5
SCC 82 : [2000] 3 SCR 1000; State of Karnataka v. E
Muralidhar (2009) 4 SCC 463 : [2009] 4 SCR 400 –
relied on.
Case Law Reference
[2012] 1 SCR 145 relied on Para 14
F
[2003] 3 Suppl. SCR 618 relied on Para 14
[2000] 3 SCR 1000 relied on Para 14
[2009] 4 SCR 400 relied on Para 16
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 698 of 2010.
From the Judgment and Order dated 07.01.2009 of the Madurai
Bench of the Madras High Court in Criminal R.C. No. 232 of 2006.
H
602 SUPREME COURT REPORTS [2019] 4 S.C.R.
A Ms.Babita Sant, Ms.Malini Poduval, Advs. for the Appellant.
M.Yogesh Kanna, Adv. for the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J. 1. In this appeal, the appellant-
B accused has called in question the judgment and order dated 07.01.2009
in Crl. R.C. No. 232 of 2006 whereby, the Madras High Court at its
Madurai Bench, while dismissing the criminal revision petition, has upheld
the conviction of the appellant for offences under Sections 279, 337(3
counts) and 304-A (4 counts) of the Indian Penal Code (‘IPC’).
C 2. Put in brief, the accusation against the appellant had been that
on 24.02.2001 at about 07:15 p.m., while driving a government passenger
bus bearing registration No. TN-72-N-0891 in a negligent manner, he
caused an accident near Korampallam on Tuticorin-Tirunelveli Main Road,
which resulted in the death of four persons namely, Jayaraj, Muniasamy,
Gopal and Dharma Nadar whereas three persons namely, Murugan,
D Senthur Pandian and Krishnan were injured. For the incident in question,
FIR came to be registered as Crime No. 70 of 2001; and after investigation,
the accused was charge-sheeted for the offences as aforesaid.
3. In trial, the prosecution, inter alia, relied on the testimony of
PW-1 Chellathrai (the informant), who asserted that at the time of the
E accident, he was standing near Thangaiah STD booth and saw the
accused driving the offending vehicle in a rash and negligent manner,
without even blowing the horn; and having caused the accident whereby,
four out of five persons, who were standing near the booth, came beneath
the vehicle and those four persons succumbed to their injuries whereas,
F the fifth person was taken to the hospital. PW-2 Samadhana Raj, who
had a cycle shop on Korampallam main road, corroborated the testimony
of PW-1 and stated that Dharamraj, Gopal, Jayraj etc. had come to his
shop to fix a puncture and they were standing on the mud side of the
road when the vehicle in question came at a fast speed from Tirunelveli
and dashed against them; that a TVS 50 vehicle also came under the
G offending vehicle; and that he helped the injured to reach the hospital.
PW-3 Adhisaya Pandi, who was taking tea at a nearby place, further
corroborated the testimonies of PW-1 and PW-2. Moreover, PW-4
Murugan, also a victim of the accident, testified that while he was standing
and talking to Muniasamy, Dharma, Senthur Pandian and Murugan, a
government bus, which was over-speeding from the right side, caused
H
THANGASAMY v. STATE OF TAMIL NADU 603
[DINESH MAHESHWARI, J.]
the accident. This witness also stated that the driver of the bus left the A
vehicle and fled away from the scene of the accident. PW-5 Senthur
Pandian, the only surviving member of the five who came beneath the
bus, testified in the same manner as PW-4. He, of course, stated in the
cross examination that the driver of the offending bus having ran away,
his identity was not known. However, in the examination-in-chief this
B
witness stated thus: “The person who drove the bus is the accused
here. He alighted and went away.” This witness also deposed in the
cross-examination that a lorry from the opposite direction of the bus
came fast after overtaking a bullock cart; and that southern side of the
road in question had a slope and any vehicle taking to that side of the
road would turn upside down. C
4. The accused-appellant attempted to suggest that there was
neither any oral evidence nor any documentary proof that he was driving
the bus and had caused the accident; and that, since the driver of the bus
allegedly fled from the scene, his identification was a matter of serious
doubt. D
5. In its order dated 24.09.2004 in C.C. No. 205 of 2001, on
appreciation of evidence, the Trial Court rejected the contentions urged
on behalf of the accused and found it proved that he did cause the
accident which resulted in the death of four persons apart from causing
injuries to three. Accordingly, the Trial Court convicted and sentenced E
the accused-appellant for the offences under Sections 279, 337 (3 counts)
and 304-A (4 counts) in the following manner:
“14A. Finally, in the light of the evidence that was elicited in
the case and the documents marked and the material objects
produced and after analysing the evidence, I have come to F
the conclusion that the charges laid against he accused have
been proved and hold him guilty under Sections 279, 337
IPC (3 counts) and Section 304-A IPC (4 counts). Therefore,
I impose a fine of Rs. 200/- and in default one month
imprisonment for the offence under Section 279 IPC,
Rs. 100/- for each count of the offence under Section 337 G
IPC (3 counts) and in default one month imprisonment, four
months imprisonment for the offence under Section 304-A IPC
(4 counts) for each count. I order that the accused will serve
the sentences simultaneously. The total fine is Rs. 500/-”
H
604 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 6. The appeal preferred by the accused-appellant against the
judgment and order aforesaid, being Criminal Appeal No. 91 of 2004,
was considered and dismissed by the Sessions Judge, Tuticorin in the
judgment dated 28.11.2005, after re-examination of the entire evidence
on record.
B 7. Against the judgment aforesaid, the accused-appellant filed a
revision petition, being Crl.R.C. No. 232 of 2006, before the Madras
High Court, Madurai Bench which was also dismissed by the impugned
order dated 07.01.2009. The High Court approved the conviction and
sentencing of the appellant while observing as under:
C “11. It has already been pointed out that due to accident four
persons have passed away and three others have sustained
injuries. Considering the nature of the accident and also
considering that four persons have lost their lives, it is
needless to say that no leniency can be shown in awarding
sentence against the revision petitioner/accused.
D
12. The courts below, after evaluating all the evidence
available on record, have rightly found that the accused has
committed offences under Sections 279, 337 (3 counts) and
304-A (4 counts) of the Indian Penal Code and in view of the
discussion made earlier, this court has not found even a filmsy
E ground to impinge the concurrent judgments passed by the
courts below and altogether the present criminal revision case
deserves dismissal.”
8. Assailing the order aforesaid, learned counsel for the accused-
appellant has contended that the orders passed by the High Court as
F also the sub-ordinate Courts are contrary to law and that the order of
conviction was passed while completely ignoring the portion of the
statements of PW-4 and PW-5 wherein, they had also deposed that the
accident had occurred due to rash and negligent driving of a lorry coming
from the opposite direction; and further that the bus had to swerve to
G north instead of going south, since there was a valley like slope on the
southern plank of the road. Learned counsel has further submitted that
the identity of the driver of the bus remained doubtful, as could be noticed
from the testimony of prosecution witnesses, who admit that the driver
of the bus had immediately fled from the scene of the accident and, for
want of identification parade, the testimony of the alleged eye-witnesses
H
THANGASAMY v. STATE OF TAMIL NADU 605
[DINESH MAHESHWARI, J.]
could not have been relied upon as regards identity of the appellant. The A
learned counsel would submit that without strict proof of the identity of
the bus driver, the appellant could not have been convicted in this case.
The learned counsel would also pray for waiving of the sentence of
imprisonment with reference to the passage of time and the
circumstances of the case. Per contra, learned counsel for the
B
respondent-State has duly supported the order impugned and has
submitted that looking to the gravity of the offence, no case for any
interference is made out.
9. Having given anxious consideration to the rival submissions
and having examined the record with reference to the law applicable,
we find no reason to show any interference in this matter at the instance C
of the appellant.
10. The grounds on which the appellant seeks exoneration in this
case are twofold: one, that there was no evidence to prove that he was
driving the bus involved in the accident; and second, in the alternative,
that the incident in question took place for the reason of the vehicle from D
the opposite side approaching in a negligent manner and if the driver of
the bus in question had not taken to the northern side, the passengers of
the bus would have been at the greater risk because of a valley like
slope on the southern plank of the road. The submissions remain totally
bereft of substance. E
11. So far the question of identity of the appellant as driver of the
offending bus is concerned, the Trial Court, the Appellate Court and
then the High Court have found the fact duly proved with reference to
the overwhelming evidence on record, including the testimony of PW1
to PW5. In this regard, the observations of the Appellate Court could be F
usefully taken note of as under:-
“... Regarding the submissions of the defence that the
prosecution witnesses could not tell who actually was driving
the bus because PWs 1 to 5 could not establish during their
cross-examination that the accused was a driver and that they G
had stated that the driver ran away and they did not know
who was the driver. But the trial court which examined this
submission in the light of the testimonies and other necessary
evidence, has held that PWs 1 to 5 had identified the accused
as the person who was driving the bus No. TN-72-0891 and
H
606 SUPREME COURT REPORTS [2019] 4 S.C.R.
A that the accused was present in the court and accordingly
identified him. In view of this, this court rejects the arguments
of the appellant-accused.”
12. The suggestion that the accident in question occurred for the
fault of the on-coming vehicle from the opposite direction has also been
B rejected with reference to the evidence on record wherein the witness,
including the injured persons, uniformly stated that the accident occurred
for rash and negligent driving of the offending vehicle by the appellant.
13. The contentions urged before this Court essentially relate to
the appreciation of evidence. Having regard to the contentions urged,
C we have examined the material placed on record in this appeal and find
nothing of infirmity in the appreciation of evidence by the sub-ordinate
Courts and by the High Court, who have concurrently reached to the
definite conclusion that the accident occurred for rash and negligent
driving of the vehicle by the appellant that resulted in the death of four
persons apart from causing injuries to three. The devastation in terms of
D casualties and injuries, as brought about by the appellant, was bound to
result in his conviction for the offences under Sections 304-A IPC (four
counts) and 337 IPC (three counts).
14. So far the plea for reducing the period of imprisonment is
concerned, the same has only been noted to be rejected. In this regard,
E we may usefully refer to the decision of this Court in Alister Anthony
Pareira v. State of Maharashtra: (2012) 2 SCC 648 wherein, the
allegations against the appellant had been that while driving a car in
drunken condition, he ran over the pavement, killing 7 persons and causing
injuries to 8. He was charged for the offences under Sections 304 Part
F II and 338 IPC; was ultimately convicted by the High Court under
Sections 304 Part II, 338 and 337 IPC; and was sentenced to 3 years’
rigorous imprisonment with a fine of Rs. 5 lakhs for the offence under
Section 304 Part II IPC and to rigorous imprisonment for 1 year and for
6 months respectively for the offences under Section 338 and 337 IPC.
Apart from other contentions, one of the pleas before this Court was
G that in view of fine and compensation already paid and willingness to
make further payment as also his age and family circumstances, the
appellant may be released on probation or his sentence may be reduced
to that already undergone. As regards this plea for modification of
sentence, this Court traversed through the principles of penology, as
H enunciated in several of the past decisions including those in State of
THANGASAMY v. STATE OF TAMIL NADU 607
[DINESH MAHESHWARI, J.]
M.P. v. Ghansyam Singh: (2003) 8 SCC 13 as also in Dalbir Singh A
v. State of Haryana: (2000) 5 SCC 82; and, while observing that the
facts and circumstances of the case show ‘a despicable aggravated
offence warranting punishment proportionate to the crime’, this Court
found no justification for extending the benefit of probation or for reduction
of sentence. On the question of sentencing, this Court re-emphasised as
B
follows:-
“84. Sentencing is an important task in the matters of crime.
One of the prime objectives of the criminal law is imposition
of appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of crime and the
manner in which the crime is done. There is no straitjacket C
formula for sentencing an accused on proof of crime. The
courts have evolved certain principles: the twin objective of
the sentencing policy is deterrence and correction. What
sentence would meet the ends of justice depends on the facts
and circumstances of each case and the court must keep in D
mind the gravity of the crime, motive for the crime, nature of
the offence and all other attendant circumstances.
85. The principle of proportionality in sentencing a crime-
doer is well entrenched in criminal jurisprudence. As a matter
of law, proportion between crime and punishment bears most E
relevant influence in determination of sentencing the crime-
doer. The court has to take into consideration all aspects
including social interest and consciousness of the society for
award of appropriate sentence.’’
(underlining supplied for emphasis) F
15. It shall also be apposite to recapitulate the observations of this
Court in the case of Dalbir Singh (supra), guarding against leniency in
relation to the drivers found guilty of rash driving, in the following passages:
G
“1. When automobiles have become death traps any leniency
shown to drivers who are found guilty of rash driving would
be at the risk of further escalation of road accidents. All those
who are manning the steering of automobiles, particularly
H
608 SUPREME COURT REPORTS [2019] 4 S.C.R.
A professional drivers, must be kept under constant reminders
of their duty to adopt utmost care and also of the consequences
befalling them in cases of dereliction. One of the most effective
ways of keeping such drivers under mental vigil is to maintain
a deterrent element in sentencing sphere. Any latitude shown
to them in that sphere would tempt them to make driving
B
frivolous and frolic.
*** *** ***
13. Bearing in mind the galloping trend in road accidents in
India and the devastating consequences visiting the victims
C and their families, criminal courts cannot treat the nature of
the offence under Section 304-A IPC as attracting the
benevolent provisions of Section 4 of the PO Act. While
considering the quantum of sentence to be imposed for the
offence of causing death by rash or negligent driving of
automobiles, one of the prime considerations should be
D deterrence. A professional driver pedals the accelerator of
the automobile almost throughout his working hours. He must
constantly inform himself that he cannot afford to have a
single moment of laxity or inattentiveness when his leg is on
the pedal of a vehicle in locomotion……. He must always keep
E in his mind the fear psyche that if he is convicted of the offence
for causing death of a human being due to his callous driving
of vehicle he cannot escape from jail sentence. This is the
role which the courts can play, particularly at the level of
trial courts, for lessening the high rate of motor accidents
due to callous driving of automobiles.’’
F
(underlining supplied for emphasis)
16. We may also usefully refer to a decision of this Court in the
case of State of Karnataka v. Muralidhar : (2009) 4 SCC 463,
G wherein, for rash and negligent driving, the respondent caused accident
resulting in demise of a 16 year old boy while another person sustained
grievous injuries. The Trial Court sentenced the respondent to six months
imprisonment and to a fine of Rs. 1,000/- with default stipulation for
offence under Section 338 IPC and to rigorous imprisonment for one
year with fine of Rs. 5,000/- with default stipulation for the offence
H
THANGASAMY v. STATE OF TAMIL NADU 609
[DINESH MAHESHWARI, J.]
under Section 304-A IPC. The appeal was dismissed by the Sessions A
Court. However, the High Court waived custodial sentence and only
fines were imposed. This Court referred to the principles related with
the offence under Section 304-A IPC as also the problems associated
with the road traffic injuries and found absolutely no reason that the
High Court waived the custodial sentence awarded to the respondent.
B
Hence, the impugned judgment of the high Court was set aside and that
of the Trial Court restored.
17. In the light of the principles aforesaid, when we examine the
facts of the present case, it is noticed that for rash and negligent driving
by the appellant, as many as four persons died and three other sustained
injuries. Yet, the Trial Court had been considerate in awarding the sentence C
only of four months’ imprisonment for each count of the offence under
Section 304-A IPC and only of fine of Rs. 100 for each count of the
offence under Section 337 IPC and Rs. 200/- for the offence under
Section 279 IPC. To say the least, the punishment awarded in this matter
had been rather on the lower side. There being no appeal for enhancement D
of sentence and looking to the time that has elapsed, we would not be
making any further comment in the matter. Suffice it to conclude that no
case for reducing the punishment awarded to the appellant is made out.
18. Accordingly, and in view of the above, this appeal fails and is,
therefore, dismissed. The appellant shall surrender before the Court E
concerned within a period of 4 weeks from today and shall undergo the
remaining part of the sentence. In case he fails to surrender within the
period aforesaid, the Trial Court will take necessary steps to ensure that
he serves out the remaining part of sentence, of course, after due
adjustment of the period already undergone.
F
Kalpana K. Tripathy Appeal dismissed.
G
H
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